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TMI Blog1993 (2) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... espectively These Market Returned Cigarettes were brought back to their Company s Kidderpore Factory for re-processing and/or re-making of fresh cigarettes in accordance with the requirements of Rule 97 of the Central Excise Rules, 1944 under valid D-3 Form. The fresh cigarettes made out of the Market Returned Cigarettes after re-processing were cleared from the Kidderpore Factory on payment of appropriate excise duty. It was the case of the respondents that on verification of all relevant documents and the Market Returned Cigarettes in question, the Superintendent of Central Excises, Range-I Calcutta, was satisfied that all the formalities required under Rule 97 of the said Rules in connection with the re-processing of the Market Returned Cigarettes were duly complied with by the Respondent Company and certificates were accordingly issued to them dated 21-5-1984 and 21-6-1984 respectively, to that effect. It was also the case of the respondents that the Superintendent certified that the Market Returned Cigarettes held commercial value at the time of re-entry into their Kidderpore Factory for re-processing. 3. In that view, the Respondent Company filed two Refund Claims for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents filed a reply to that effect on 5-2-1986 stating that their applications for refund filed before the Assistant Collector of Central Excise, Calcutta Division dated 22-5-1984 and 22-6-1984 respectively, should be treated as the applications and they also relied on Rule 97 of the Central Excise Rules, 1944. They also stated in their reply that the dates of receipt of Refund Claims by the Assistant Collector of Central Excise, Calcutta having jurisdiction for their Kidderpore Factory, should be treated as the dates of filing of their Refund Claims and the submission of Refund Claims to the Assistant Collector of Central Excise, Patna, should not be taken as the crucial date. It was also stated in the reply that as the Refund Claims were admittedly filed within the period of limitation before the Assistant Collector of Central Excise, Calcutta and since they were scrutinised by him and they were forwarded to the respondents for presentation to the Assistant Collector, Patna and since the respondents complied with that direction, the dates of receipt of the Applications before the Assistant Collector of Central Excise, Calcutta, should be taken as the correct dates. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise before the expiry of six months from the relevant date which was further explained in the Explanation Clause (b) that in the case of goods returned for being re-made, refined, reconditioned or subjected to any other similar process, in any factory, it will be the date of entry into the factory for the purposes aforesaid. He further pointed out that in the instant case, the goods were brought to the Respondent Company for re-processing on 24-11-1983, 22-11-1983 and 27-12-1983. Hence the respondents were required to file the Refund Claims by 23-5-1984, 21-6-1984 and 26-6-1984 respectively. Since the Refund Claims were filed with the Assistant Collector, Patna on 20-7-1984 they were barred by limitation. In this connection, he pointed out that the term - Assistant Collector of Central Excise - under Section 11B(1) refers to the Jurisdictional Assistant Collector and not to any other Assistant Collector. Hence a claim of refund has to be filed with the Jurisdictional Assistant Collector with whom the duty was paid. In this case, the claim was not filed with the Jurisdictional Assistant Collector who was the Assistant Collector of Central Excise, Patna. In this connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B of the Central Excises and Salt Act, 1944 nor Rule 97 of the Central Excise Rules, 1944 specifies that Refund Claims have to be necessarily filed with the Central Excise Authorities under whose direction the factory where the goods were originally manufactured, lies. On the other hand, Rule 97 postulates return of duty-paid excisable goods issued for home-consumption from a factory not only to the same but to any other factory for being remade, refined, reconditioned or subjected to any other similar process in the factory. Hence, a detailed account of returned goods and processes to which they are subjected after their return to the factory in terms of Rule 97 of the said Rules can only be kept in the factory records of the factory where re-processing is actually carried out. Shri R.N. Das, learned Counsel for the Respondent Company, therefore, contended before us that it is obvious that the factory into which the goods are returned and accordingly re-processed, is only in a position to comply with the requirements of Rule 97 of the said Rules and it is apparent that the said compliance will have to be reported to the Collector of Central Excise having jurisdiction over the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat case. He also relied on the decision of the Tribunal reported in 1989 (40) E.L.T. 444 in the case of Knit Foulds Pvt. Limited v. Collector of Central Excise wherein it is held as follows : Further when the Collector (Appeals) had stated that the test was necessary because the test of predominance was relevant, it was not open to the Assistant Collector to say in his re-adjudication order that, in his view, the test of predominance was not at all relevant to the construction of the Tariff Item. He clearly acted beyond the mandate given by the Collector (Appeals). The Collector (Appeals) also on his part, had fallen into error in upholding the Assistant Collector s order which, as just seen, was beyond his jurisdiction. The above-said principles are well-settled. It is a settled proposition of law that when a particular observation is made in the remand order for de novo adjudication, the de novo adjudication should proceed in the light of the remand order and it cannot go beyond the scope of the remand order. The learned Advocate, Shri Das pointed out that in the order passed by the Collector of Central Excise (Appeals) whereby he had remanded the case for de novo adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be considered by the Assistant Collector, Central Excise, Patna in the de novo adjudication. The fact of return of the refund claim by the Assistant Collector, Central Excise, Calcutta I Divn. is supported by Annexure D to the petition. The above order will apply to their other appeal No. Nil dated Nil against order No. 10-Ref/84 (28/84) dated 29th December, 1984 of the same Assistant Collector." It is thus seen that in the latter part of his order, the learned Collector (Appeals) had clearly directed the Assistant Collector that while deciding the case afresh, the contention of the respondents that the date of their submission of the Refund Claims to the Assistant Collector of Central Excise, Calcutta-I Division, should be treated as the date of submission of the refund claim, appears to be reasonable and the same should be decided by the Assistant Collector of Central Excise, Patna in the de novo Adjudication. It dearly shows that the Collector of Central Excise (Appeals) had not given a definite finding in this regard but in his remand order; however, he had given the liberty to the Assistant Collector to examine this aspect which was pleaded by the respondents i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s time-barred with reference to date of receipt of papers in his section. On the same analogy, Shri Das, learned Counsel for the respondents contended before us that the claim of refund presented to the Assistant Collector of Central Excise, Calcutta which was within time, cannot be treated by the Assistant Collector of Central Excise, Patna as time-barred with reference to the date of receipt of those papers in his office on 20-7-1984. He also relied on the decision reported in 1991 (56) E.L.T. 546 in the case of Ama Extrusion v. Collector of Central Excise wherein it is held at para 6 which is as follows :- The protracted silence by the Assessing Officer on their request for giving credit could not be held against the assessee for the purpose of treating the claim as time-barred. In this view of the matter, we hold that though the letter addressed to the Superintendent, is for giving credit in the RT 12 returns in terms of Rule 173(1) of the Central Excise Rules, in view of the silence or inaction on the part of the Assessing Officer, the subsequent refund claim filed before the Assistant Collector, is to be construed as the one originating from this letter. Reliance was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in exceptional circumstances beyond the control of the manufacturer a shorter notice, of the re-entry of excisable goods into the factory is given to the proper officer before the goods are received into the factory: Provided further that where the proper officer is not on duty at the time of the receipt of the goods into the factory, the manufacturer stores the goods separately and reports full details of the goods to the proper officer as soon as it is possible to do so; (iii) the goods are presented, before they are taken into stock, to the proper officer for inspection, and if necessary, for taking samples; (iv) the goods are identified to the satisfaction of the Collector; (v) the majority of the unit or smallest packages, as the case may be, meant for retail sale are intact and unopened, and in the case of opened packages, the goods are identified, to the satisfaction of the Collector on the basis of marking on the individual articles or containers and on other collateral evidence, if any: Provided that opened packages shall not be admitted in respect of commodities with concessional rates of duty or partial exemption for the small or cottage sector, as set forth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all formalities required under Rule 97 of the Rules in connection with re-processing of the Market Returned Cigarettes, are complied with by the Respondent Company. It is the Calcutta Collectorate who should issue the certificates to the Respondent Company in this regard. It is also the case of the respondents that such certificates were issued to them by the Superintendent concerned on 21-5-1984 and 21-6-1984 respectively. In that view of the matter, the respondents under bona fide impression, had filed the Refund Applications to the Assistant Collector of Central Excise, Calcutta, within whose jurisdiction the reprocessing was done. As stipulated in Rule 97 this bona fide plea of the respondents cannot be said to be without any basis. It cannot also be said that the respondents had submitted their Refund Applications to an Assistant Collector who had no connection whatsoever, with the goods in question. If the respondents on a bona fide impression, had acted upon the wordings of Rule 97 and had made such an application before the Assistant Collector of Central Excise, Calcutta, then in that event, that application should be treated as the application for refund. The mere fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents, so that the refund claims of the respondents could have been determined by the Assistant Collector of Central Excise, Patna on the merits of the case. But instead of doing so, he had returned the applications to the respondents directing them to approach the Assistant Collector, Patna and this procedure will not make any difference and in that process, if the application was filed before the Assistant Collector of Central Excise, Patna beyond the period of limitation, it cannot be said that the Refund Claim was barred by limitation. In fact, the claim of refund was-made on the date on which the applications were filed before the Assistant Collector of Central Excise, Calcutta which admittedly was within the period of six months. In that view of the matter, when the Collector of Central Excise (Appeals), Calcutta had taken the view that these applications were filed within time by holding that the date of filing the refund claims to the Collector of Central Excise, Calcutta-I Division, should be taken as the date of Refund Applications, there is no error committed by him. Accordingly, he has rightly come to the conclusion that the claims are not hit by imitation by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions in Section 11B of the Central Excises and Salt Art, 1944 arid Rule 97 of the Central Excise Rules which permit the receipt of goods in a factory different from the one where they had originally been manufactured, the procedure followed by the respondents in this case, in receiving the goods m their Kidderpore factory in Calcutta for reprocessing, cannot be objected to and it was just as well that the process of remaking was permitted and the verification work was attended to by the officers in charge of that factory. As correctly contended by the learned Senior Advocate, Shri R.N. Das, the different steps spelt out under Rule 97 and the checks contemplated have specific relevance for only the officers in charge of the factory where the goods are received for remaking. The said Rule starts with the position that the Collector may grant refund of the duty paid on excisable goods returned to the same or any other factory for remaking etc. There is nothing in this Rule that the Refund is to be granted only by the Collector in charge of the factory where the goods had been manufactured and where duty had originally been paid. In that view of the matter and taking into account the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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